February 15 2013 Exam 2 Chapters 12 15 Chapter 12 Torts and Cyber Torts The Basis of Tort Law o Notions that serve as the basis of all torts Wrongs and compensation Designed to compensate those who have suffered a loss of injury due to another person s wrongful act The Purpose of Tort Law o Tort Civil injury o Provide remedies for the invasion of various protected interests o Ex Personal physical safety property intangible interests Damages Available in Tort Actions o Compensatory Damages Intended to compensate or reimburse a plaintiff for actual losses Make plaintiff whole where they would be if the tort had not occurred Special damages Compensate for quantifiable monetary losses General damages Compensate individuals not companies for the nonmonetary aspects of the harm suffered such as pain reputation and suffering How to measure o Punitive Damages Punish wrongdoer and deter others from similar wrong doing Appropriate only when defendant s conduct was particularly egregious or reprehensible Gross negligence Intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another o Torts encourage trivial and unfounded lawsuits clog courts and costly o Damages are often excessive and not related o Class Action Fairness Act CAFA 2005 Shifted jurisdiction of large interstate tort and product liability class action lawsuits from state to federal courts Purpose To prevent attorneys from forum shopping Looking for Tort Reform Intentional Torts Against Persons states known to be sympathetic Intentional tort Requires intent intended that the consequences of the act with substantial certainty that certain consequences would result from the act o Tortfeasor The one committing the tort o Tortfeasor must intend to commit an act the consequences of which interfere with the personal or business interests of another in a way not permitted by law o Law assumes that individuals intend normal consequences of their actions If you shove someone kidding or not you should expect them to get hurt Assault and Battery o Assault Intentional and unexcused threat of immediate harmful or offensive contact including words that imply that physical harm will be caused Placing you in the fear and making it possible o Battery Unexcused and harmful or offensive physical contact intentionally performed Completing the assault Offensive contact May be entitled to compensation Reasonable person standard o Can have one or the other o Defenses to Assault and Battery Consent Self defense reasonable force Defense of others reasonable force Need to make sure that they want your defense o Ex Bar argument between a couple Defense of Property TX Someone is in your house you can shoot them Spring guns Goes beyond what is necessary False Imprisonment Intentional confinement or restraint of another person s activities without jurisdiction o Holding someone against their will o Moral pressure does not count o Class o Merchants may reasonably detain customers if there is a probable cause Intentional Infliction of Emotional Distress Intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another o Actionable Capable of serving as the ground for a lawsuit Must exceed the bounds of decency accepted by society o Ex Expecting a child to be dead and it was really just a surprise Defamation Wrongfully hurting a person s good reputation o Slander Oral Special damages Exception Slander Per Se o No proof no way to undo statement o Libel Writing or other permanent form Published statement must be a fact General damages are presumed o Publication requirement Publication of a false statement Contempt ridicule or hatred Directed to a third party Even if they only overhear the statement o Also when regarding person s product business or legal ownership rights to property o Statement of Fact vs Statement of Opinion First Amendment rights o Defenses to Defamation Truth Privileged Immune Speech Absolute Judicial and legislative proceedings Qualified Employee evaluations Public Figures Public officials who exercise substantial governmental power and any persons in the public limelight Statements must be made with actual malice knowledge of its falsity or a reckless disregard of the truth o Damages for Libel o Damages for Slander General Nonspecific harms disgrace or dishonor Plaintiff must prove special damages to establish defendant s liability Economic or monetary losses Slander per se No proof of special damages is required for it to be actionable 1 Particular type of disease leprosy STDs mental 2 Improprieties in a profession or trade 3 Committed of imprisoned for a serious crime 4 Unchaste sexual misconduct Invasion of Privacy o Fundamental right to solitude freedom from public scrutiny o To sue for invasion Must be highly offensive 1 Appropriation of identity 2 Intrusion into an individual s affairs or seclusion 3 False light 4 Public disclosure of private facts Appropriation Use of another person s name likeness or other identifying characteristic without permission and for the benefit of the user o Degree of Likeness o Right of Publicity as a Property Right Fraudulent Misrepresentation Accidental misrepresentation because not aware of the facts o Intentional deceit for personal gain o 1 Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth o 2 Intent to induce another party to rely on the misrepresentation o 3 Justifiable reliance on misrepresentation by the deceived party o 4 Damages suffered as a result of that reliance o 5 Casual connection between misrepresentation and injury suffered o More than mere puffery seller s talk must be involved o Reliance on a statement of fact Abusive or Frivolous Litigation o Malicious prosecution Lawsuit initiated out of malice and without probable cause and lost the suit they can be sued o Abuse of process Any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed Business Torts Apply only to wrongful interferences with the business rights of others Wrongful Interference with a Contractual Relationship o 1 Valid enforceable contract must exist between two parties o 2 Third party must know that this contract exists o 3 Third party must intentionally induce a party to the contract to breach the contract Wrongful Interference with a